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Monday, December 12, 2016

Could the Electoral College Really Vote to End the Trump Fiasco?

by Nomad

It's quickly becoming an election year cliche.

We are now in uncharted waters.

Who could say that's not true?
The circumstances of Trump's victory have been extraordinary. Not merely because, against all odds, the tangerine tycoon won, but also because it was an unanticipated technical win.

Although he won the Electoral College vote, his opponent won the popular vote. It's not the first time this has happened, but Trump comes to office as the most disliked president-elect in modern US history.

That 41% approval rating is lower than President Barack Obama's 72% in December 2008 and President George W. Bush's 50% in January 2001 -- in the wake of a disputed election. It's also lower than President Bill Clinton's 62% in January 1993 and President George H.W. Bush's 65% in March 1989.

FactCheck.org took a look at the vexing question: Could the Electoral College Elect the winner of the popular vote, Clinton, over the winner of the electoral college vote, Trump?

The shortest answer is yes, it is possible but very unlikely.

Now signed by more than 4.3 million people a Change.org petition argues that Trump is “unfit to serve"

His scapegoating of so many Americans, and his impulsivity, bullying, lying, admitted history of sexual assault, and utter lack of experience make him a danger to the Republic.

The petition calls upon electors to vote according to the will of the people.

Donald Trump has not been elected president. The real election takes place December 19, when the 538 Electoral College Electors cast their ballots – for anyone they want.
If they all vote the way their states voted, Donald Trump will win. However, in 14 of the states in Trump's column, they can vote for Hillary Clinton without any legal penalty if they choose.

We will know whether or not the members of the Electoral College are prepared to take this bold and unusual decision when they meet.

FactCheck notes:

As Alexander Hamilton writes in “The Federalist Papers,” the Constitution is designed to ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” The point of the Electoral College is to preserve “the sense of the people,” while at the same time ensuring that a president is chosen “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

What are the legal ramifications of bucking the system? Well, so-called faithless electors are not constitutionally obliged to vote according to the popular vote. In 1952, in Ray v. Blair, the Supreme Court ruled that states could require electors abide by the state vote under punishment of fines of $500 to $1,000. Some states also allow faithless electors to be replaced by alternates.

This is where things grow murky.

Whether those pledges or fines could be upheld by the Supreme Court is unclear. As the National Archives notes, “No Elector has ever been prosecuted for failing to vote as pledged.” In addition, more than 20 states do not have a state law or party or state pledge requiring electors to back the candidates with the most votes in their state.

Even though there have been over a hundred and fifty cases of "faithless electors in US history, none have affected the outcome of a presidential election.

FactCheck consulted the experts. Laurence Tribe, a professor of constitutional law at Harvard Law School. Tribe said that, in theory, presidential elector are "free to vote as their consciences dictate."
In the face of suspicious circumstances or questions of suitability, the consciences of these men and women would provide that last failsafe for the system.

Tribe said the constitutionality of imposing a fine on a “faithless elector” is “open to doubt, and it is even more doubtful that a court would compel any Elector to be ‘faithful’ to the State’s winner-take-all outcome. Nor is it likely that the Vice President, who presides over the process of opening the Electors’ ballots and counting the votes cast by the 538 Electors, would feel free to ‘correct’ a faithless Elector’s vote.

Astonishingly, it would seem that, as long as there are enough faithless electors, there's nothing preventing them from rejecting Trump and voting instead for Clinton.

Experience teaches us that what is possible is not always likely. This is true in the case too. Firstly, both Clinton and Obama must consider the damage such a decision could do in the long term to the Republic.

In response to Trump's hesitation about accepting the results of the election, both the president and the Democratic candidate went on record as insisting that acceptance of the results is vital to the peaceful transition our democracy requires. Hillary Clinton herself said that Americans “respect and cherish” the “rule of law.”

If one accepts that the election was rigged, then all of Trump's talk about rejecting the results if he lost was a clever tactic. He could later use Clinton's own words against her, making it impossible for her to throw doubts on the results.

However, if there was compelling evidence of widespread fraud- for example, Russian hacking into voting machines- which could not be ignored, then the scenario changes again.
It has to be stressed that the evidence would have to be extremely convincing.Otherwise, it is unlikely that either of them would support a reversal of the Electoral College vote.

FactCheck adds another difficulty with this scenario.

The electors are chosen by the state parties. They are usually people heavily involved in the campaign of their party’s nominee or active in the state party.

Those connections to the political party leadership make a revolt against the party's winner extremely far-fetched. Said Richard Pildes, a professor of constitutional law at New York University School of Law, told FactCheck editors

“So if you try to picture how this might happen, it would have to be the party leadership in some group of states that is convinced to abandon Trump.”

Clinton supporters have no reason to be optimistic. No matter how unqualified Trump might be, how much of a threat the man may be for the country and the world, there seems to be little that can be done to divert the national trajectory.

How all this will play out is anybody's guess. To add another cliche to the basket, in this election, it seems nothing is written in stone.

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